8/8/ ERISA AND HEALTH INSURANCE SUBROGATION UPDATES. GoToWebinar Attendee Interface

Transcription

1 2012 ERISA AND HEALTH INSURANCE SUBROGATION UPDATES Presented By: Ryan L. Woody Matthiesen, Wickert & Lehrer, S.C. GoToWebinar Attendee Interface 1. Viewer Window 2. Control Panel ERISA AND HEALTH INSURANCE SUBROGATION UPDATES Presented By: Ryan L. Woody Matthiesen, Wickert & Lehrer, S.C. 1

2 INTRODUCTION Since the decision of the U.S. Supreme Court in Sereboff v. Mid Atlantic Medical Services, 547 U.S. 356 (2006), self funded ERISA health Plans have generally succeeded in obtaining reimbursement but that has not stopped claimants attorneys from offering novel legal theories in an attempt at defeating Plan reimbursement claims has been a turbulent year for health subrogation and we are going to take a look at those significant legal developments with an emphasis upon what novel legal arguments are being made by counsel for the Plan members throughout the country so that you won t be blind sided when you hear them. 4 ERISA LITIGATION BASICS WHO? ERISA 502(a)(3) A civil action may be brought (3) by a participant, beneficiary, or fiduciary (B) to obtain other appropriate equitable relief to enforce any provisions of the plan. ERISA 502(a)(3) is ERISA s catchall enforcement mechanism. 5 WHERE? ERISA LITIGATION BASICS the district courts of the United States shall have exclusive jurisdiction of civil actions ERISA 502(e)(1) In the district where the Plan is administered; Where the breach took place; Where a defendant resides or may be found. 6 2

3 SEREBOFF Sereboff v. Mid Atlantic Med. Services, Inc., (2006) Court faced a Circuit split over whether a Plan s action for reimbursement constituted legal or equitable relief. On a 9 0 decision, the Court held that express reimbursement provisions in ERISA Plans created an equitable lien by agreement which the Plan could enforce in equity through 502(a)(3). But Footnote 2 becomes a silver lining for the plaintiff s bar. 7 AMARA CIGNA Corp. v. Amara, (2011) Involved a class action challenge to CIGNA who attempted conversion of its pension Plan from a defined benefit to a cash balance Plan. After a finding that CIGNA misrepresented the level of benefits available, the Court turned to equitable estoppel and reformation to modify the Plan in order to comport with CIGNA s representations. Court holds that reformation is available in equity to prevent fraud and misrepresentation. But, a showing of a detrimental reliance must first be made. 8 McCUTCHEN US Airways, Inc. v. McCutchen, (3 rd Cir. 2011) Facts: Plan paid $66,866; Third Party Limits $10,000 (multiple claimants); UIM $100,000. Issue: The issue before the Court is whether McCutchen may assert certain equitable limitations, such as unjust enrichment, on US Airways equitable claim. Plan language required reimbursement from any monies recovered by the participant. The 3 rd Circuit found that the phrase appropriate equitable relief necessarily includes the ability of a health benefit Plan recipient to assert equitable defenses to a reimbursement claim. 9 3

4 CGI CGI Tech. & Sol., Inc. v. Rose, (9 th Cir. 2012) Facts: Plan paid $31,581.09; Third party Recovery $376, Issue 1: Participant argues that appropriate relief means that the Plan s recovery must bear a pro rata relationship to the portion allocated to medical expenses and the ratio that bears on the overall claim to the actual recovery. Issue 2: Lawyers for the participant argue that they are not proper defendants to an ERISA action. 10 CGI (Cont.) Issue 1 The panel recognizes that Harris Trust overrules the 9 th Circuit s decision in Gentner. However, states that an attorney may only be joined if his conduct violates ERISA. Issue 2 The court accepts that it is authorized by the word appropriate to consider equitable defenses where a court is sitting in equity. 9 th Circuit Rule District courts should consider the written terms of the Plan but are not required to give them controlling weight when fashioning appropriate equitable relief. 11 LESSONS FROM CGI How does the Court distinguish Barnes v. Indep. Auto Dealers Ass n, (9 th Cir. 1995)? Legal Claim v. An Equitable Claim WhatcanPlansponsorsdotocombatCGI and McCutchen? Plans will begin excluding benefits where a third party is liable. Members will be forced to sue Plans where benefits have been excluded. Exclusions will be upheld because those suits would not fall under ERISA 502(a)(3) and be subject to the 3 rd &9 th Circuit s definition of appropriate. Intervention into the underlying tort cases. 12 4

5 WHAT ELSE CAN BE DONE? On June 26, 2012, the Supreme Court Granted Certiorari in McCutchen. (RuleofFour) Continue to Support NASP NASP is at the forefront with these cases. Amicusbriefsfiledin CGI and McCutchen. ContactLauraSchmidtatDowns&StanfordinDallasif you or your company is able to make a monetary contribution to the Supreme Court efforts. 13 WHAT WILL THE SUPREME COURT DO? Prediction: I think the Supreme Court will overturn McCutchen (and CGI)8 1. Why? This Court should grant certiorari to address the meaning of appropriate equitable reimbursement under and to correct the 8 th Circuit s holding that requires the Shanks to reimburse Wal Mart in full, thereby depleting Debbie s special needs trust, is appropriate under 502(a)(3). Shank v. Admin. Comm. of Wal Mart Stores, Inc. Associates Health &WelfarePlan, 552 U.S. 1275, 128 S. Ct. 1651, 170 L. Ed. 2d 386 (2008), Cert Denied. 14 TRICKS OF THE TRADE: Arguments You Need to Know Now 5

6 STOP LOSS INSURANCE SUBJECTS PLANS TO STATE INSURANCE LAWS LIKE MAKE WHOLE? Texas Department of Ins. v. Am. Nat. Ins. Co., (Tex. 2012) Court holds that the Department of Insurance can regulate the stop lossinsurersof self funded ERISA Plans. The plaintiff s bar is arguing that this means that there is no preemption where the stop loss coverage is triggered. This decision has no bearing on subrogation. Citing Metropolitan Life, the Court recognizes that the state may not regulate the provisions of the employee EHBP contract. 16 ACS Recovery Serv., Inc. v. Griffin, 676 F.3d 512 (5 th Cir. 2012) E.D. Tex. Magistrate Judith Guthrie; Chief District Court Judge Leonard Davis 5 th Circuit Judge Haynes Auto Accident; Plan Paid $50,076.19; Tort Recovery $300,000 Instead of receiving the settlement damages, however, the Defendants applied to the Shelby County, Texas, District Court to establish a Special Needs Trust pursuant to Texas Property Code , et seq., with Larry s brother, Willie Earl Griffin, as Trustee ( Trustee ). In a Compromise Settlement Agreement ( Settlement Agreement ) approved by the Shelby County, Texas, District Court, the proceeds, with a present value of $294,439.82, were apportioned with $100, payable in attorneys fees; $5, payable in various other fees; $40,000 payable to Defendant Judy Griffin per the terms of a Decree of Divorce; and $148, payable to Hartford Comprehensive Employee Benefit Services Company to fund future periodic payments for the Larry Griffin 142 Special Needs Trust ( Trust ). ACS sued Larry Griffin, Willie Griffin (Trustee); the Trust; and Judy Griffin. 17 ACS Recovery v. Griffin (Cont.) The Court says that the plaintiff did not sue the correct party the party in possession of the funds. (Great West v. Knudson situation). The 5 th Circuit affirms and states that the proper party was the Hartford Comprehensive Employee Benefit Services Company, which held the funds. UPDATE Full 5 th Circuit Agrees to Rehear the Case! ACS Recovery Services, Inc. v. Griffin, , 2012 WL (5 th Cir., July 13, 2012) 18 6

7 ACS Recovery v. Griffin (Cont.) Lessons Learned: Make sure you name everyone that could potentially be deemed to be in possession and control of the funds. What about the attorneys $100,000 fee? What about intervention into the state court case? 19 CONCLUDING THOUGHTS Will Be A Defining Year For Health Subrogation Feel Free To Contact Me Anytime rwoody@mwl law.com Important Resources NASP MWL law.com ERISA ANDHEALTH INSURANCE SUBROGATION UPDATES Ryan L. Woody Matthiesen, Wickert & Lehrer, S.C. (262) rwoody@mwl law.com law.com 21 7